Mcelligott
v. Mcelligott, 2023 WL 5932947 (D. New Jersey, 2023)
The District Court granted the Petition by Stephen McElligott for the
return of his minor child C.M., to Ireland. Petitioner Stephen McElligott was born
in Ireland and was an Irish citizen. Respondent Audrey McElligott (nee Mocco) was
born in New York and was an American citizen. The parties were married on
November 10, 2009, in Ireland where they lived together until November 14, 2022.
The parties’ older son, C.M., was born in Ireland on April 9, 2011, and lived
in the family home in Ireland with both parents until November 14, 2022. On
November 14, 2022, Petitioner gave written consent to Respondent to travel to
the United States with C.M. and J.M. from November 14, 2022, until November 28,
2022. C.M. was a
citizen of Ireland. J.M., a second son, was born in Ireland on March 19, 2013,
and lived in the family home in Ireland with both parents and his older
brother, C.M. The Court concluded that Petitioner made out a prima facie
case under the Convention that C.M. was wrongfully retained in the United
States after removal from his habitual residence in Ireland, in violation of
Petitioner’s custody rights under Irish law, which he was exercising at the
time of wrongful retention. The
Court found that C.M. offered rational and particularized reasons for opposing
return, beyond a mere “generalized desire” to remain where he was. The Court found that C.M.’s
desire to remain in the United States and not return to Ireland was the product
of undue influence. The Court found that the child’s wrongful detention in New
Jersey for what was approaching a year among his mother and her close-knit
family, all of whom view Petitioner very negatively and apparently had no
hesitation in expressing the same in front of C.M. — coupled with the welcome
American accoutrements such as summer camps, cellphones, and private gyms that
were not afforded to him in Ireland — had understandably but improperly
contributed to his desire to remain here.
Accordingly, the Court exercised its discretion under the Convention to
find that this is not an appropriate case in which to deny the Petition. C.M.
must return to his father and brother in Ireland.
